Who Should Negotiate a Short Sale?

Recently, a listing brokerage instructed one of my agents to include a HUD-1 as part of our client’s offer on that brokerage’s short sale listing. To say that it was a peculiar request is an understatement; The HUD-1, which is a mandatory form in any transaction involving a mortgage financing, itemizes and documents all expenses for both buyer and seller. In New York, especially Westchester and the Metropolitan area, it is prepared by the seller’s attorney in a short sale, with approval from the bank approving the short sale, the  buyer’s attorney, their bank attorney, and the title company. Aside from the real estate commission line item, there is no involvement of the real estate agent. 

While the request was for a “preliminary” HUD-1 and not the final form, the instruction for us to provide one was ill advised and questionable to my thinking. A I said, the form includes the seller’s expenses as well. How can the buyer’s agent possibly know the seller’s mortgage amount, mortgage payoff, back taxes, back payments, or other liens and expenses? The answer is that they can’t, unless the seller provides it. Why the seller would provide such information to the other side in a transaction is beyond me. They have their own fiduciary in their listing agent and attorney. 

Maybe they had a great, innovative point; if so, I didn’t glean it from their Kramdenesque stutter when I inquired. We had an offer. They needed to present it and crunch the numbers on behalf of their client. 

Upon occassion, I am contacted by “short sale investors” who promise my full commission, will buy my listing for cash, and re-list the house with me after they close. Tantalizing, huh? Oh, just one little thing: They want to negotiate the short sale themselves. In other words, they want to be an authorized third party designated by my seller client to deal with my seller’s bank. 

No deal. You know who deals with my seller’s lender? Myself and the seller’s attorney as their fiduciary advocates. The bank won’t even talk to us for reasons of confidentiality without a signature authorization from the client. For a seller to authorize the purchaser to negotiate on their behalf with the bank for the short sale is antithetical to any agency rule on a listed home I have ever known. 

As I said, it is the seller’s broker and lawyer who negotiate a short sale in New York. There are some outside companies who are paid by the seller to do so for a fee, but I do not hire them. I refer my short sale clients to an attorney who can do short sales in their sleep. 

The point here is that everyone needs to play their position in a short sale transaction, and that our fiduciary responsibilities and duties to be an advocate don’t go out the window when a short sale is involved. 

Who negotiates for the seller? It should be the people the sellers hire, preferably their agent and attorney, not the people they sell to.